[s]hould any prosecutions by brought against [Chaparro]
by this Office, the Government will not offer in
evidence on its case-in-chief, or in connection with
any sentencing proceeding for the purpose of
determining an appropriate sentence, any statements
made by [Chaparro] at the meeting . . . .

The Agreement further provided that,notwithstanding this provision, the
Government

may use statements made by [Chaparro] at the meeting
and all evidence obtained directly or indirectly
therefrom . . . to rebut any evidence or arguments
offered by or on behalf of [Chaparro] (including
arguments made or issues raised sua sponte by the
District Court) at any stage of the criminal
prosecution (including bail, trial, and sentencinG)
should any prosecution of [Chaparro] be undertaken.

(Emphasis in original and supplied.) The Agreement was signed by
Chaparro, his attorney Jennifer Brown, Assistant United States Attorney
Steven Glaser and a witness.

Shortly thereafter, in a taped conversation between Chaparro and his
co-defendant Oscar Ortega on July 31, 2000, Chaparro explained to Oscar
Ortega that he had met with the Government to obtain a "5K1," and had
given the Government information about the Perez murder, but assured
Oscar Ortega that he had denied having any information about the
Ortegas' involvement in drug activities. Chaparro explained that a "5K1"
was "[w]hen you snitch and they . . . send a letter to the judge . . .
and they cut your time." Chaparro stated further that "it's not
snitching, though. It's just helping yourself out." Chaparro stated that
he "talked about it and I told him everything about it," referring to
the Perez murder. Chaparro stated that "if they use it, they gotta give
me the letter." He also informed Oscar Ortega that he had been
questioned about the Ortegas' drug dealing activities, and that he had
responded by stating that

I don't know because I never, I never dealt with him.
I never went up to them and asked them you know . . .
It was one of my business . . . So he [the AUSA] was
like oh, but you ever? No I ever . . . I've never seen
nothin . . . they always kept to themselves. You
know they're brothers . . . . He said so, so, where did
this guy get? I don't know . . . . And then he was
like but you never seen? No man. So how about, how
about, how about this, this and that. I was like I
never seen that. And then I got it. And I got it from
this and that. You understand what I'm saying right?

Chaparro explained further to Oscar Ortega: "Basically I told him nothing,
you know what I'm saying?"

Meanwhile, having concluded that Chaparro was not truthful during the
July 18 proffer session, the Government declined to offer him a
cooperation agreement. The Government did inform the DA's Office,
however, that Chaparro had information regarding the Perez murder,
although it also conveyed the Government's view that Chaparro had
"serious credibility problems." Assistant District Attorney Nancy Borko
("ADA Borko") expressed an interest in meeting with Chaparro. At the
request of Chaparro and ADA Borko, a proffer session was held at the
United States Attorney's Office on September 8, 2000. Chaparro, defense
attorney Brown, AUSA Glaser and ADA Borko were present at that meeting.
The Agreement was re-executed and re-initialed at the September 8
meeting by Chaparro, Brown, Glaser
and a witness. Neither the Government
nor defense counsel has described what was said during this interview.

Chaparro has submitted a letter from ADA Borko in which the ADA
described Chaparro's initial refusal to cooperate and his decision to
cooperate after federal charges were filed:

Mr. Chaparro had always been unwilling to work with the
Detectives assigned to this homicide. However, at some
point, Mr. Chaparro decided to work with the Government
to benefit himself and law enforcement.

ADA Borko acknowledged the limited nature of Chaparro's assistance to the
DA's Office:

The information that [Chaparro] was able to supply the
government was only in relation to the death of Mr.
Perez. Although his cooperation agreement with the
Government did not come to fruition, he did continue to
assist this office in it's [sic] prosecution of Mr.
Brooks and Mr. Smalls.

The ADA emphasized the truthfulness, completeness and importance of
Chaparro's assistance to the DA's Office in its prosecution of Smalls and
Brooks:

Mr. Chaparro gave a full account of all the events
he knew that may have related to the murder. He
also gave a sworn statement as to exactly what he
saw and heard when the murder occurred. . . .
[Chaparro's] eventual willingness to testify and
giving us the information to locate other witnesses
proved invaluable for the aforementioned
prosecution.

In his submissions, Chaparro also made a number of statements about his
attempt to cooperate with federal authorities:

"Eager to improve his situation, he [Chaparro]
sought to cooperate with federal authorities."

"Ms. Brown [Chaparro's attorney] explored the
prospect of having Mr. Chaparro cooperate with the
Government."

Agreements between the Government and a criminal defendant "are
interpreted according to principles of contract law." United States v.
Gregory, 245 F.3d 160, 165 (2d Cir. 2001) (citation omitted)
(cooperation agreement); see also United States v. Liranzo,
944 F.2d 73, 77 (2d Cir. 1991) (proffer agreement). Nonetheless, because
agreements between a defendant and the Government are "unique contracts
in which special due process concerns for fairness and the adequacy of
procedural safeguards obtain," United States v. Ready, 82 F.3d 551, 558
(2d Cir. 1996) (citation omitted), courts must "resolve any ambiguities
in the agreement against the government," United States v. Rodgers,
101 F.3d 247, 253 (2d Cir. 1996); see also Gregory, 245 F.3d at 165. The
Government is held "to the most meticulous standards of both promise and
performance." Altro v. Altro (In re Altro), 180 F.3d 372, 375 (2d Cir.
1999) (citation omitted) (enforcing integration clause in plea
agreement).

The terms of the Agreement at issue here are ot ambiguous, and Chaparro
does not suggest otherwise. The Agreement allows the Government to rely
on Chaparro's proffer statements to "rebut any evidence or arguments
offered by or on" Chaparro's behalf at sentencing. Thus, Chaparro has
waived the protection of Rules 410 and 11(e)(6) to the extent his
statements rebut any argument he
advances or evidence he presents in favor of his Section 5K2.0 departure
motion.

Taking the two sessions in reverse chronological order, Chaparro
contends, in reliance on the terms of the Agreement executed that day,
that the Government may not describe his statements on October 3, 2001,
even though those statements were made to ADA Borko as well as to the
federal authorities since both were present that day. Chaparro's
statements may be admitted if they rebut arguments he has made or
evidence he has submitted in support of his motion for a departure. In
support of his motion, Chaparro has argued that he "provided truthful
and complete information" to ADA Borko, and has submitted evidence that
he gave ADA Borko "a full account of all the events he knew that may
have related to the murder." (Emphasis added.) At the proffer session on
October 3, 2001, Chaparro told ADA Borko that he had no information that
the Ortegas dealt drugs and that he had ever worked for the Ortegas.

Chaparro's statements of October 3 rebut arguments and evidence he
submitted in support of his motion for a departure. First, the fact that
Chaparro lied to ADA Borko directly rebuts his contention that he
provided "truthful" information to the DA's Office. Second, Chaparro's
employment by the Ortegas and his information regarding the Ortegas'
drug activities are clearly relevant to the Perez murder, including, but
not limited to, the motives of the individuals accused of the murder.
Chaparro's statements thus fairly and directly rebut his argument that
he provided ADA Borko with a "full account" of "all the events" he knew
that "may have related" to Perez's murder.

In addition, Chaparro maintains that in considering his motion for a
departure, this Court should apply those factors relevant to a departure
pursuant to Section 5K1.1, including "the truthfulness, completeness, and
reliability of any information or testimony provided by the defendant,"
as well as "the nature and extent of the defendant's assistance." U.S.
Sentencing Guidelines Manual § 5K1.1(a)(2), (3) (2001). By
requesting the Court to consider Section 5K1.1 factors in evaluating his
motion for a departure, Chaparro has waived the protection of the
Agreement to the extent that the statements he made to the ADA on
October 3 are relevant to the truthfulness, completeness, reliability,
nature and extent of the assistance he has described giving to the DA's
Office.

Chaparro maintains, however, that the statements in his initial
submissions simply describe his acts of contacting and meeting with the
Government and were provided solely as background. His most recent
submission acknowledges that Chaparro did not do "what was required" to
receive a cooperation agreement, and argues that his submissions were
"quite frank" with the Court in this regard.

It is commonly understood that there are two principal requirements for
a defendant to receive a cooperation agreement from the Government: 1)
truthful disclosure of your own criminal activity and that known to you
in which others have engaged, and 2) a sufficient likelihood of being
able to provide substantial assistance in the prosecution of others.
See United States v. Doe, No. 96 Cr. 749 (JG), 1999 WL 243627, at *10
(E.D.N.Y. Apr. 1, 1999). The former requirement of full and honest
disclosure is ecessary for a number of reasons, including all of the
reasons which mandate that the Government not present perjurious
testimony through its witnesses. To the extent that there was any
ambiguity in the defendant's original submission in support of his
departure motion, it is now evident that he is not contending that he was
truthful when speaking with the federal authorities. With that
clarification, the Government may not offer Chaparro's statements at the
July 18 meeting on the issue of whether he sought to cooperate in good
faith with the federal authorities.

The only remaining issue is whether Chaparro's lies to the Government
on July 18 may be used as circumstantial evidence to rebut his arguments
and evidence concerning the veracity and completeness of his state
cooperation. They are not direct evidence on this point since ADA Borko
did not attend this interview. The Government contends that Chaparro's
lies on July 18 make it more likely that his omissions and untruthful
statements to the DA's Office were not inadvertent, but were instead
part of a calculated effort to win a sentencing reduction by providing
information against rivals while protecting himself to some extent, and
more importantly his bosses, through lies.

At the same time, however, because a defendant waives important rights
when she signs an agreement with the Government, courts must be
Particularly concerned with fairness to the defendant when interpreting
and enforcing such agreements:

Our concern for fairness is rooted in an appreciation
of the fact that, unlike ordinary contracts, plea
agreements call for defendants to waive fundamental
constitutional rights, and in an awareness that the
Government generally drafts the agreement and enjoys
significant advantages in bargaining power.

Altro, 180 F.3d at 375. In this case, however, not only the language, but
the entire structure of the Agreement indicates that there is no
unfairness to Chaparro in allowing use of his statements during proffer
sessions once he has opened the door to their use by his arguments and
evidence. The design of the Agreement provides any defendant who decides
to speak with the Government strong incentives to speak truthfully, and
discourages anyone from speaking at all if she intends to lie or intends
at a later time in the prosecution to advocate a position at odds with
the facts she describes during the proffer session. See United States
v. Perrone, 936 F.2d 1403, 1411-12 (2d Cir.), clarified on reh'g,
949 F.2d 36 (2d Cir. 1991) (approving impeachment of defendant's testimony
at trial through witness's description of the defendant's statements
covered by proffer agreement).

While courts must consider general fairness principles in interpreting
and enforcing agreements between defendants and the Government,

with respect to federal prosecutions, the courts'
concerns run even wider than protection of the
defendant's individual constitutional rights §
§ to concerns for the honor of the government,
public confidence in the fair administration of
justice, and the effective administration of
justice in a federal scheme of government.

Ready, 82 F.3d at 558 (citation omitted). Structuring the Agreement to
provide incentives for a defendant to speak during the proffer session
only if she is speaking truthfully furthers the goals articulated in
Ready. As already described, the risks a defendant takes if she lies
during a proffer session enhance her credibility and assist in giving
her access to significant benefits in her prosecution. So long as the
defendant makes the commitment contained in the proffer agreement
knowingly and voluntarily and there is no Government overreaching in
enforcing the agreement, its terms promote a search for the truth. If
the Government enters into a cooperation agreement with a defendant and
acts upon that defendant's information in the prosecution of others, and
only later discovers that the defendant has lied, the system of justice
is injured, the lives of others may be wrongly and seriously impacted,
and in some cases, extensive collateral litigation ensues.*fn12 If a
defendant has spoken truthfully, the Government may be able to make far
better decisions regarding what agreements to reach in the individual
defendant's case, about how to deploy its resources in the prosecution
of others, and in the investigation of crime.

Enforcing proffer agreements will also enhance the integrity of the
judicial truth-seeking function. See Mezzanatto, 513 U.S. at 205. In
fact, the Second Circuit has observed that an agreement that would keep
a sentencing judge

ignorant of pertinent information cannot be
enforceable, because a sentencing court must be
permitted to consider any and all information that
reasonably might bear on the proper sentence for the
particular defendant, given the crime committed.

There remains one possible exception to this ruling. It would not be
appropriate to use the July 18 and October 3 statements by Chaparro if he
withdraws his contentions that he was truthful in everything that he said
to the ADA, including his description of the circumstances that caused
Sean's beating and the retalitory shooting. As it now stands, Chaparro's
submissions argue that Chaparro was truthful when he spoke with the DA's
Office, including in his description of the events that relate to the
murder, and that a departure should be based on an evaluation of, among
other things, the extent of his cooperation with the DA's Office. Any
fair reading of this argument opens the door to Chaparro's statements on
July 18 and October 3. What Chaparro cannot do, even through
implication, is represent that he provided complete and truthful
cooperation to the DA's Office and then deprive the Government of the
ability to contest that representation or the Court of the ability to
evaluate it. If, however, Chaparro makes a more narrow argument, such as
arguing that he accurately described to the DA's Office the events that
he observed on the day of the murder, it would not be appropriate to
allow the Government to reveal the statements Chaparro made on July 18
and October 3 under the protection of the Agreement. As defense counsel
herself observes, "[a] defendant should not be permitted to hide behind
the protection of a proffer agreement to defraud a Court and undermine
the truth-seeking function."

CONCLUSION

For the reasons stated above, the Government may introduce Chaparro's
statements from the July 18 and October 3 proffer sessions unless
Chaparro narrows his arguments in support of his Section 5K2.0 departure
motion so that these statements are no longer relevant rebuttal.
Chaparro's motion to preclude is denied.

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